Kosic v. Rejelda, 2011 ONCJ 706

Brampton Registry No. 1493/91 DATE: 2011·X·26 CITATION: Kosic v. Rejelda , 2011 ONCJ 706 ONTARIO COURT OF JUSTICE BETWEEN: LIANA KOSIC Applicant — AND — ANGELO RADELJA Respondent Before Justice Steven R. Clark Motion Heard on 30 September 2011 Ruling Released on 26 October 2011 Liana Kosic ............................................................................................................ self-represented Geoffrey Carpenter .................................................................... for the respondent Angelo Radelja JUSTICE S.R.

CLARK: 1: INTRODUCTION [ 1 ] The respondent father, Angelo Radelja (hereinafter referred to as “the father”) brings a motion to change the final order of Justice Kerrigan Brownridge dated May 27, 1997 regarding ongoing child support. [ 2 ] He seeks to terminate same, since the subject child, Christopher Kosic (hereinafter referred to as either “the child” or “Christopher”) born September 20, 1991, presently age 20, is no longer engaged in a meaningful secondary or post-secondary educational institution. [ 3 ] The applicant mother (the responding party in this motion) (hereinafter referred to as “the mother”) asks the Court to dismiss the motion as the subject child is enrolled in an alternative high school program and is reasonably engaged according to his abilities.

Accordingly, she submits that child support should continue. She also asks the Court to recalculate the quantum of child support retroactive to 2008, in accordance with the father’s reported income. [ 4 ] Christopher, was also in attendance, and was invited to address the Court. [ 5 ] The original order provides, inter alia , that the father pay child support in the amount of $450.00 per month, commencing June 1, 1997. There is no indication of the father’s annual income on which the quantum is based.

The order is silent regarding annual financial disclosure. 2: THE POSITIONS OF THE PARTIES 2.1: The Father [ 6 ] The essence of the father’s position is that the child is now 20 years old. He has only obtained 15 out of 42 credits. Although the child claims he is presently in grade 12, he has not been committed to the program. In fact, the school records indicate that he has only obtained an average of 26%. Over the last two years, he has attempted alternative school with very little success.

Moreover, he does not have a job, either full-time or part-time, nor is he attempting for look for one. [ 7 ] Accordingly, he is seeking an order that child support be terminated as of June 30, 2011. He brought this motion to change on June 2 nd , 2011.

[ 8 ] His total income for 2010 was $100,493.00. He anticipates his total income for 2011 will be $90,000.00. [ 9 ] The terms of the original order provided for an annual increase by the Indexing Factor from the previous year. As of April 15, 2011, the Family Responsibility Office has recalculated the cost of living allowance adjustment to support payments. The father is now paying $589.87 as of May 27, 2011. [ 10 ] Mr. Carpenter, counsel for the father, submits that the child only goes to school for one hour a week.

The records filed appear to indicate that he did not attend school at all from September 2009 to September 2010. He only attends 50% of the classes in which he is presently enrolled. The documentation is rife with continual unauthorized absences. To the present, Christopher has only obtained a total of 15 credits. On this basis, there is no way he can finish the required 30 credits by September, 2011, as is his plan. He is only entitled to take three credits at a time. At this rate, it would take him several years to obtain them.

Counsel submits, therefore, that this is not a legitimate institutional endeavour. [ 11 ] What continues to make this situation problematic, is that the father receives absolutely no information whatsoever from the mother as to Christopher’s school status or progress.

Accordingly, it is not surprising that he takes the view that because Christopher is not committing himself to this educational program he should now be required to seek and obtain employment, and to support himself. [ 12 ] Accordingly, he submits that Christopher is no longer a child within the guidelines and support is no longer payable because he is not making reasonable efforts to be eligible for same. [ 13 ] Counsel also suggests that the mother is motivated to respond to this motion because she only earns $6,500.00 per year, and that this is really a spousal support motion being disguised as child support. [ 14 ] Counsel also submits that Christopher told the father that he intended to find employment, which is indicative of him no longer wishing to attend school. [ 15 ] Regarding the issue of retroactive child support, the father submits that even if the Court gave any consideration at all to the payment of retroactive child support back to 2008, he would still be in an overpayment position. 2.2: The Mother [ 16 ] In her Form 15B Response to the motion to change, the mother, on the other hand, submits that Christopher is committed to completing his grade 12 credits.

According to her, he did not take time off school from 2009 to 2010, but has always been enrolled in one program or another. He has always been in an independent alternative learning program since the age of 3. He has been designated to be in a special learning program since grade 9. She has been advised by school and medical authorities that Christopher has an attention deficit disorder. She stated, however, that she did not allow him to take medication. [ 17 ] She explained that Christopher does not go to school just for one hour per week.

He is required to check into his classroom where he receives his homework and assignments. He is allowed to do his work either in class or at home. When he has completed his assignments, he takes them in to his teacher who then marks them and gives him more assignments once they have been properly completed. [ 18 ] It has been difficult for Christopher to focus in large classrooms. He needs more one-on-one teaching. [ 19 ] She provided a copy of a letter dated June 20, 2011, from the vice-principal of Philip Pocock Catholic Secondary School, indicating that Christopher enrolled there in September, 2005.

He was identified as an exceptional student regarding his communications learning disability. The letter further explained that Christopher experienced difficulty attaining credits in a structured setting. After three years at this school, he had only completed 12 credits. It was recommended that he enrol in a different program more suited to his learning needs. [ 20 ] She also submitted a copy of a letter dated June 16, 2011, from the vice-principal of the Peel District School Board Alternative School South. This letter confirms that Christopher is registered.

The school is for students between the ages of 16 and 20 who require an alternative educational setting due to a number of circumstances, including those who have personal issues which prevent full-time attendance at a regular Peel school. The letter further explains that students normally take two or three courses per semester. Each course is scheduled in class for two hours per week. Between scheduled classes students must work independently on course work. Expectations for these courses are the same as they are in any Peel secondary school.

His most recent entry was June 15, 2011. [ 21 ] She submits that since he has been enrolled in this recent program, his grades have improved dramatically. [ 22 ] Regarding the issue of retroactive child support, the father’s total income for the last three years shows $100,493.00 in 2010; $97,768.00 in 2009; and $104,386.00 in 2008.

She is seeking a retroactive child support variation for these three years on at least $90,000.00 per year, in which case the table amount is $798.00 per month. 2.3: The Child [ 23 ] Christopher advised that the independent learning program he is presently enrolled in allows him to study at a pace consistent with his ability. He understands that he would be asked to leave the program if he did not attend, or did not complete his assignments. It is his intention to complete his grade 12 credits by the end of August, 2012.

He then plans to attend Humber College in either a gemology course, or a program involving the growing of plants. He explained that his current program requires him to attend classes each Monday morning between 9 and 11 a.m., at which time he receives his assignments. He is entitled to work at school or at home as he wishes. On Tuesday, he works on his assignments at home. On Wednesday, he does some work at home but also goes into class. The same routine occurs on Thursday. On Friday, he is entitled to go into school if he so chooses. He advised that he did have a

part-time summer job at Purolator. He is presently looking for part-time employment. He has applied at a company called Arctic Ice. Itis his position that he does not necessarily have to be enrolled in any school in order to apply as a mature student at Humber College nextSeptember. He recognizes, however, that it is advisable to obtain all of his high school credits in case college does not work out. 3: ANALYSIS 3.1: Ongoing Support for Adult Child [24] The authority to order support for an adult child is found in the Family Law Act (hereinafter referred to as the “FLA”)which provides: 31.

(1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full-timeprogram of education, to the extent that the parent is capable of doing so.

(2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn fromparental control. [25] The purpose of s.31 of the FLA is to foster the goal of making parents responsible for the education of their children. [26] Not surprisingly, it is in the best interests of both the child, and society in general, that the pursuit of education be valued.As a common goal, there is a collective desire for our children to ultimately secure meaningful employment.

This, of course, requireseducation and training. [27] The FLA sets out three limitations, or defences, to the obligation to pay child support.

The obligation ends when the child: 1. marries; 2. withdraws from parental control; or 3. if over the age of 18, is not enrolled in a full-time program of education. [28] The party seeking support for the adult child has the onus of establishing entitlement. [29] On the other hand, in the present case, the father has a companion onus to demonstrate, on a balance of probabilities, thatthere has been a material change in circumstances leading to the inevitable conclusion that the child is not engaged in a full-timeeducational program.

Although somewhat vague and amorphous, the test is one of reasonableness. [30] Furthermore, there does not appear to be any arbitrary cut-off point based on age or academic achievement. [31] What is important, as a general rule, is that parents of a bona fide adult student remain financially responsible until thechild has reached a level of education commensurate with his demonstrated abilities that fits for his entry level employment in anappropriate field within a reasonable period of time. [32] Relevant considerations in determining the right to child support include the following: 1. the age of the child; 2. his academic achievements; 3. the possibility of securing employment having regard to the standard of education already achieved and the state of the labourmarket; and 4. the capacity of the parents to bear the cost of an education for a child who demonstrates an aptitude. [33] Additional considerations include whether the child has reasonable career plans, and the ability of the child to contributeto his own support through part-time employment. [34] The critical question in this motion to change is, what constitutes a full-time program of education?

It would appear, froma review of the extant case law that a child can be found to be enrolled in a full-time program of education while taking less than a fullcourse load. See Wilson v. Wilson, , 117 A.C.W.S. (3d) 945, [2002] O.J. No. 4308, [2002] O.T.C. 885, 2002 Cars​-well​Ont 3838 (Ont. S.C.). [35] The case law also appears to suggest that a flexible approach should be taken to determine this issue, having regard to thechild’s aptitude and abilities.

Put another way, something less than a full course load is acceptable provided the child’s participation ismeaningful and consistent with the program’s purposes and objectives. See Kapounek v. Brown, , 7 R.F.L. (5th) 144,[2000] O.J. No. 1301, 2000 Cars​well​Ont 1406 (Ont. Fam. Ct.). The caveat, however, suggests that the child must be fully engaged in hisor her education. [36] The educational facility’s policy of what constitutes full-time enrolment is not necessarily determinative of the issue. SeeCava v. Cava, , 139 A.C.W.S. (3d) 904, [2005] O.J.

No. 2316, [2005] O.T.C. 430, 2005 Cars​well​Ont 2287 (Ont.S.C.), at para. 35). It is merely one of many factors to consider. [37] The other live issue in this particular case is whether full-time enrolment is enough or must the child be passing his

courses? One line of cases suggests that the child owes a duty to pursue his education in a meaningful and diligent fashion. SeeFigueiredo v. Figueiredo, , 33 R.F.L. (3d) 72, [1991] O.J. No. 953, 1991 Cars​well​Ont 278 (Ont. Gen. Div.); Giess v.Upper, , 28 R.F.L. (4th) 460, [1996] O.J. No. 5600, 1996 Cars​well​Ont 5243 (Ont. Fam. Ct.); McNulty v. McNulty,McNulty v. McNulty, , 28 R.F.L. (6th) 233, [2005] O.J. No. 5199, 2005 Cars​well​Ont 7001 (Ont. S.C.).

In otherwords, the educational program must be for a legitimate purpose, and the child must make a genuine effort at completing it. [38] However, another line of cases suggests that the analysis does not require a standard of devotion, priority and effort as acondition of entitlement. See Copeland v. Copeland, [1993] W.D.F.L. 122, 6 O.F.L.R. 148, 12 L.W.C.D. 486, [1992] O.J. No. 2677,1992 Cars​well​Ont 3533 (Ont. Gen. Div.)). Therefore, full-time enrolment is all that should be required.

The rationale for this is that inmany cases, failure to succeed may be a result of emotional upset which is so often suffered by children as a side-effect of parentalbreakdown. [39] Therefore, the failure of an adult child to obtain exemplary grades in his studies is not necessarily a sufficient basis, initself, to justify a finding that he is no longer entitled to support. [40] Furthermore, as long as there is a reasonably clear career plan, the child ought to be entitled to support, even if he isunable to contribute part-time to his own education. [41] The ultimate question for the Court, therefore, is, what can this particular child responsibly manage? [42] The Court finds that Christopher has special educational needs. [43] Furthermore, the Court finds that this is not a situation where the mother is disguising spousal support for child support,any more than this is a motion to change by the father in an effort to avoid paying same. [44] Christopher is still under parental control. [45] The Court is satisfied that entitlement has been demonstrated, and that he is enrolled in a full-time educational program.Were it not so, and if Christopher was not meeting the threshold level of commitment, the education authorities have the discretion toterminate enrolment. [46] However, there is a caveat.

The order to be made will be temporary, until the end of August, 2012, when Christopher isscheduled to complete his high school credits. Furthermore, the Court intends to make it a term of this temporary order that the father bekept informed of Christopher’s marks, attendance, and academic progress. [47] Christopher must appreciate that he is to be held to a reasonable degree of accountability by attending all scheduledclasses, unless there are legitimate absences, and be as engaged as possible in his educational pursuits. [48] This is a “borderline” case, at present.

Christopher must make his education a priority. His effort must remainmeaningful, consistent and purposeful. He must pursue his education with reasonable diligence. What he does not devote to his program,he should devote to seeking and maintaining a part-time job to discharge his duty to himself, and his parents, and to contribute to his ownfuture.

At the age of 20, this should not only be helpful, but expected. [49] He may not be entitled, in the future, to the luxury of continued financial support, unless there is cogent evidence of himworking to his full potential and capacity, when this matter is revisited in the late summer or early fall of 2012. 3.2: Retroactive Child Support [50] The guiding principles for retroactive child support are set out by the Supreme Court of Canada in the cases of D.B.S. v.S.R.G.; L.J.W. v. T.A.R.; Henry v. Henry; and Hiemstra v. Hiemstra, 2006 SCC 37, [2006] 2 S.C.R. 231, 351 N.R. 201, 391 A.R. 297, 61Alta.

L.R. (4th) 1, 377 W.A.C. 297, [2006] 10 W.W.R. 379, 270 D.L.R. (4th) 297, 31 R.F.L. (6th) 1, [2006] S.C.J. No. 37, 2006 Cars​-well​Alta 976. [51] The framework for analysis requires a consideration of the following issues: 1. the legal status of the support obligation (court order, agreement, or no order or agreement); 2. the legal excuses/exemptions which may be applicable, such as: (

a) the child’s age; (

b) delay; (

c) blameworthy conduct; (

d) hardship to the child; or (

e) hardship to the payor. 3. what is the proper retroactive amount to be ordered, and what should the commencement date be?

[ 52 ] The important guiding principles from D.B.S. are as follows: • Child support is the right of the child. • The obligation of support arises automatically upon birth. • As income levels increase, or decrease, so will the parents’ contributions to the needs of the child, just as they would if the family had remained together. • When a payor parent does not increase the amount of his support when his income increases, it is the child who loses. • Retroactive awards are not simply exceptional orders to be made in exceptional circumstances. • Courts must be open to ordering retroactive support where fairness to the child dictates, but should also be mindful of the certainty that fairness to the payor often demands.

It is only after a detailed examination of the facts in a particular case where a retroactive award can be evaluated. • An award should generally be retroactive to the date when the recipient gave the payor effective notice of her intention to seek an increase in support payments. This date represents a fair balance between certainty and flexibility. • The ultimate goal is to ensure that children benefit from the support they are owed at the time they are owed it.

Any incentive for the payor to be deficient in meeting his obligation should be eliminated. [ 53 ] While the payor does not shoulder the burden of automatically adjusting payments, or of having to automatically disclose income increases, this does not mean that he will satisfy his obligation by doing nothing.

If his income rises, and the amount of child support paid does not, there remains an unfulfilled obligation that could later merit enforcement. [ 54 ] Therefore, the payor is not entitled to consider that a child support order is absolute and fixed, even where a final order does not provide for automatic financial disclosure, variation, or review. [ 55 ] It must be understood that it is based on a specific set of circumstances, leaving open the possibility that it could be varied when such circumstances change materially.

Therefore, a retroactive order does not place an obligation on a payor that did not exist at the time for which support is being claimed. [ 56 ] When considering the appropriate factors, the Court makes the following findings. 3.2(a): The Child’s Age [ 57 ] A retroactive child support order will be available as long as the child in question is eligible for child support when the application is made. For the reasons previously stated, Christopher is entitled. 3.2(b): Delay [ 58 ] Both the mother and father were silent in their respective presentations on this factor.

Accordingly, this is a fairly weighty consideration in the analysis. It would appear that both parties were satisfied with the status quo. 3.2(c): Blameworthy Conduct [ 59 ] Blameworthy conduct is anything the privileges the payor’s own interests over his child’s right to an appropriate amount of support. Therefore, it need not be intentional. However, a payor cannot hide his income increases in the hope of avoiding larger child support payments.

A payor who knowingly avoids or diminishes his support obligation should not be allowed to profit from such conduct. [ 60 ] The Court finds that the father knew that the child support was based on his income. Although the original order made did not specify what his annual income was, it is only common sense that he understood or ought to have understood that he was underpaying child support.

Therefore, the Court finds that he engaged in blameworthy conduct in not disclosing his income changes which, for the relevant years of 2008 through 2010 were significant. 3.2(d): Hardship in the Circumstances of the Child [ 61 ] It is a core principle that after separation, a child’s standard of living should approximate the standard he enjoyed while the parents were together, as much as possible. The Court is entitled to consider the child’s present as well as past circumstances. The hardship suffered by the child can affect the determination of whether the unfulfilled obligation should be enforced.

The Court finds that Christopher’s life and perhaps the ability of the mother to finance academic testing or other professional intervention could have been better addressed if more money had been available to them. 3.2(e): Hardship to the Payor [ 62 ] The father has not pleaded hardship to himself. His financial statement, filed, does not disclose any unusual expenses or

other financial obligations having to be addressed. He earned in excess of $100,000.00 in 2010. He anticipates earning $90,000.00 in 2011. Therefore, the Court finds that hardship to the payor is more speculative than real. In any event, the Court intends to structure the payment of arrears on a monthly basis which will not be disproportionately onerous. [ 63 ] Regarding the start date for any retroactive order, D.B.S. sets out four possible choices: (

a) the date when an application was made to a Court; (

b) the date when formal notice was given to the payor; (

c) the date when effective notice was given to the payor; or (

d) the date when the amount of child support should have increased. [ 64 ] Effective notice means any indication that the current amount needs to be renegotiated. It does not require the recipient to take any legal action. All that is required that is that the topic be broached. If so, the payor can no longer assume that the status quo is fair, and his interest in certainty becomes less compelling. [ 65 ] Once a Court decides to make a retroactive order, it should generally consider the start date when effective notice was given.

However, where the payor engaged in blameworthy conduct, the date when circumstances changed materially will be the presumptive start date. In the present case, the mother served the father with her response to the motion to change and claimed a retroactive adjustment of child support from January 1, 2008. [ 66 ] The father seeks termination of child support as of June 30, 2011. The mother served and filed a response shortly thereafter.

Although the Court is entitled to consider an award going back three years, given the passage of time, which neither party really adverted to, it would be unfair and too onerous to go back this far.

There is no evidence that the mother ever broached the subject to the father. [ 67 ] The Court is of the view that this is a situation where the emphasis should be placed on the present and future and not the past, now that the parties, and the child have a much better understanding of what their responsibilities and obligations are. [ 68 ] Accordingly, the commencement date for retroactive child support will only be from June 1, 2011, just shortly after the motion to change was brought by the father. 4: ORDER [ 69 ] The Court makes the following temporary order: 1.

The final order of Justice Kerrigan Brownridge, dated May 27, 1997 is varied as follows: (

a) The father, Angelo Radelja, shall pay child support to the applicant mother, Liana Kosic, on behalf of the child, Christopher Kosic, born September 20, 1991, in the amount of $798.00 per month, on imputed annual income of $90,000.00, commencing June 1, 2011, and shall continue up to and including August 31, 2012. (

b) The parties shall exchange financial disclosure including copies of income tax returns and notices of assessment annually, commencing June 1, 2012. (

c) The said father shall be provided with copies of the said child’s courses, grades, and attendance records, upon request. It may be problematic for the said father to receive these records directly from the educational institution, having regard to the age of the child.

Furthermore, the child is not legally bound to provide copies of same to the father since he is not a party, however, it is in his interests to do so, as failure to do so could impact on whether or not child support continues beyond August, 2012. [ 70 ] The trial coordinator shall set a return date for this motion to change to be continued before August 31, 2012, with input from counsel. The matter shall return before Clark J. 5: COSTS [ 71 ] The parties may make submissions for costs, if so inclined, within the next 30 days. However, the mother was the more successful party in these proceedings.

If no date is set by the trial coordinator for costs within the next 30 days, it shall be deemed that there is no order for same. Released: 26 October 2011 __________________________ Justice Steven R. Clark